The opinion of the court was delivered by: Parker, Justice.
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Helms (William H.), J., at the 13 May 1996 Criminal Session of Superior Court, Rowan County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 9 March 1998.
Defendant was indicted 4 December 1995 for the first-degree murder of Shelia Dianne Wall *fn1 on 3 November 1995. In May 1996 he was tried capitally and found guilty of first-degree murder. Following a capital sentencing proceeding, the jury recommended a sentence of death; and the trial court entered judgment accordingly. For the reasons discussed herein, we conclude that the jury selection, the guilt-innocence phase, and the capital sentencing proceeding of defendant's trial were free from prejudicial error and that the death sentence is not disproportionate.
The State's evidence at trial tended to show that the victim, Shelia Dianne Wall, met defendant, Anthony Jerome Hipps, in December of 1994 after which the two began seeing each other and spending time together. The victim would frequently spend the night with defendant in the front room of the apartment he shared with his nephew, Rock Sturdivant. Various witnesses testified that they began to notice bruises on the victim and knots and bumps on her head beginning in the summer of 1995 and continuing from that time until the time of her death. Defendant drank frequently and physically abused the victim. The victim confided to a friend in August that she was afraid of defendant, that things were getting worse, and that she was afraid defendant might kill her.
On Thursday, 2 November 1995, at around 9:00 p.m., defendant and the victim were seen arguing loudly outside the Spencer Country Cupboard. The last time the victim was seen alive by her family she and defendant were walking down the road with defendant walking behind the victim.
The next day, Friday, 3 November 1995, defendant's nephew, Sturdivant, ran into defendant in East Spencer. Defendant was acting wildly and grabbed Sturdivant and told him that he had killed his girlfriend, offering to show Sturdivant the body as proof that he was not lying to him. They were near the railroad tracks by Burdette Bridge, and defendant told Sturdivant that the body was nearby. Sturdivant got upset and frightened and left after telling defendant he did not want to see the body.
On Saturday, 4 November 1995, Sturdivant went to see the victim's family to tell them that someone told him that defendant had killed the victim. The family did not know whether to believe him. They filed a missing-person report, and the police began a search for the victim.
The next day, Sunday, 5 November 1995, fearful that his relationship with defendant would cause him to be linked to the killing, Sturdivant, on his sister's advice, went to the Spencer Police Department. Sturdivant told the police what defendant had told him about killing the victim. The police then began looking for defendant and put the word out to his friends that they wanted to talk to him.
On Wednesday, 8 November 1995, defendant went to the Spencer Police Department to be interviewed. Defendant was not under arrest at this time, but he was read his rights and signed a waiver. He gave a statement to the officers that he did not know where the victim was and that he had last seen her on Friday, 3 November 1995. Defendant was then released.
The police continued searching for the victim in the woods north of Burdette Bridge. While searching on Friday, 10 November 1995, Officer G.S. Henline saw defendant standing beside the railroad tracks near the bridge. Defendant was drinking beer and looking at Henline and laughing. Henline approached defendant to find out what was funny. Henline explained to defendant that they were searching for Shelia Wall and that if he knew something, he should let them know, but that if he did not, he should not get in the way. Defendant responded, "Yes, sir"; and after some more words were exchanged, Sergeant Henline walked away. Later, Officer George Wilhelm saw defendant by the tracks and spoke with him, telling him they were searching for Shelia Wall and asking defendant if he had seen her. Defendant responded that he had not seen her since Friday the week before, just as he had stated in his earlier statement to police on 8 November. Wilhelm told defendant that they had information that Ms. Wall had been killed and that defendant was the one who killed her. Wilhelm further told defendant that if the police found her body, they had enough evidence to arrest him for her murder; so if she was alive, defendant needed to let them know. Defendant responded that if he saw her, he would bring her to the police. Wilhelm then left defendant and continued searching.
Later that same day while on a break from the search, the officers received a call about a disturbance nearby at Real's Variety store. When Sergeant Henline arrived at the store, he saw defendant standing outside and asked him what was going on. Defendant immediately said, "Go ahead and take me. I did it," and came up and put both hands on the hood of the police car. Henline asked defendant what he was talking about; and defendant said, "I did it. Me and Rock." Henline again asked what he was talking about, and defendant responded that he and Sturdivant had killed Shelia Wall and that her body was under the bridge.
Henline was not sure whether to believe defendant but radioed Sergeant Wilhelm to meet them at Burdette Bridge. Henline and defendant then got in the front seat of the police car and drove to the bridge. Defendant had not been placed under arrest and was not handcuffed. Defendant told Henline the victim was not under the bridge itself, but under some trees. They got out of the car and were joined by Sergeant Wilhelm. Defendant met Wilhelm in front of the car and said, "I wanted to tell you [a] while ago, but I couldn't. I want to take you where Shelia is." Wilhelm put his hand up and reminded defendant of the rights he had read him on the previous Wednesday, 8 November, and told him he did not have to tell them anything. Defendant replied that he knew his rights and wanted to show them where the victim's body was. Defendant then took Wilhelm by the hand and walked him over to a brush pile and pointed and said, "There she is, there's Shelia." The victim's body was hidden with leaves and branches broken from nearby trees. Wilhelm then told defendant not to tell him anything until he could inform him of his rights again; he took defendant back to his patrol car where he kept a rights card and read defendant his rights. Defendant said he understood and waived his rights. Defendant then gave a statement in which he said that Sturdivant attacked the victim with a knife while the three of them were walking on the path and that when the victim ran to defendant for help, defendant saw the blood and panicked and started hitting her in the head with a stick. Defendant then took the officers back and showed them the location on the path where the incident took place, about two hundred yards from where he had dragged the body to hide it. He pointed out the piece of lumber with which he had struck the victim.
Defendant was then taken to the Spencer Police Department, where he was advised of his rights again and given a written waiver to sign. He repeated his statement confessing to the murder and implicating Sturdivant. Sergeant Wilhelm wrote the statement down line by line, reading it back to defendant after each line; and defendant signed it. Defendant and Sturdivant were then arrested for murder.
Sturdivant allowed the police to search his apartment and told the police that all he knew about the killing was what defendant had told him when he ran into defendant on 3 November, namely, that defendant had killed the victim and that her body was somewhere around the bridge.
On Sunday, 12 November 1995, Sergeant Wilhelm was puzzled by the details of defendant's 10 November statements about how the crime occurred. He reinterviewed defendant, again advising him of his rights. Defendant acknowledged he understood his rights and signed a waiver. Wilhelm again wrote out defendant's statement line by line, and defendant signed it. In this statement defendant confessed that he alone killed the victim after they had gotten into an argument behind the Country Cupboard on Thursday, 2 November 1995. Defendant stated that he and the victim were on the path and began to argue and fight and that he hit her and began to stab her. He covered up her body and then went to the nearby Food Lion where he bought a jug of Clorox which he poured on the body to cover up the odor and keep it from being discovered. Defendant said he previously included Sturdivant as a participant in the crime to get back at Sturdivant for telling the police that defendant had killed the victim.
Charges against Sturdivant were dropped the next day, and he was released.
Dr. John D. Butts, the chief medical examiner for the State of North Carolina, performed the autopsy on the body of Shelia Wall on 11 November 1995. He testified that the victim received thirty-four stab wounds to the body, five to the front and twenty-nine to the back, upper shoulder, and neck. Two injuries to the left lung and one to the aorta were inflicted from the back. The body cavity had filled with blood, indicating that the victim had been alive and her heart beating for some time after the infliction of the stab wounds. Additional stab wounds to the head penetrated the skull and may or may not have penetrated the brain. The victim also suffered an extensive fracture at the base of the right side of the skull consistent with a blunt-force injury from a heavy object. Dr. Butts concluded that the piece of wood found at the crime scene, or one like it, could have caused the fracture. Dr. Butts was unable to determine the order of the stab wounds in relation to the fracture of the skull but testified that if the stab wounds occurred before the fracture of the skull, the victim would have been conscious during some portion of the time during which the stab wounds were being inflicted. A cut on the victim's right thumb was consistent with a defensive wound.
The State also presented evidence concerning the murder of Wade Long committed by defendant in 1978 and brought forth details about the similarities between the 1978 and 1995 murders. The crimes, though separated by seventeen years, were committed within eight-tenths of a mile from one another in the Spencer area. Both victims had been stabbed multiple times in the back and neck with a knife. Defendant had in each instance used a piece of lumber or wood to inflict blunt-force injuries to the head, after which he had thrown the wood in the bushes. In each case defendant was later seen by police near the crime scene; and when questioned, he confessed to having killed the victims. In each case he pointed out the piece of wood he had used. Defendant did not testify or offer any evidence during the guilt-innocence phase of the trial.
During the sentencing proceeding the State introduced copies of documents from defendant's prior convictions: assault with a deadly weapon with intent to kill in 1975 and the second-degree murder of Wade Long in 1978.
Defendant offered the testimony of several witnesses at his sentencing, including family members and friends. They testified that when defendant was released in 1991 from serving time in prison for the 1978 murder, he lived with his sister and her family for six or seven months, and then moved out when he could afford a place to stay. During this time defendant began to drink heavily. Prior to the killing of Shelia Wall, defendant was frequently depressed about their relationship and about his housing and job situations--at some point in 1995 he lost his job, and his landlord was angry because his mobile home had bats. Several witnesses testified that although he often drank, defendant was never angry or violent. Defendant's niece testified that defendant could not read but had not seemed embarrassed about taking someone with him to fill out job applications.
Dr. John Warren, an expert in forensic psychology, examined defendant and diagnosed alcohol abuse, cannabis abuse, cocaine abuse, low intellectual functioning, specific reading disability, and specific spelling disability. Warren also noted symptoms of depression and adjustment disorder. He testified that defendant showed remorse for killing Shelia Wall and that defendant was tearful when they discussed it.
Defendant contends that the trial court erred in allowing the State's motions to excuse for cause two prospective jurors, Ms. Waller and Mr. Harris, and in not allowing the defense an opportunity to rehabilitate these prospective jurors.
Defendant argues that prospective juror Waller exhibited some equivocation about her ability to return a death verdict and that she did not have enough certitude on the subject to justify a challenge for cause. The transcript reveals that during voir dire by the prosecutor, Waller indicated three times that she had doubts about her ability to individually return a death verdict and that she did not think that she could do it. Upon questioning by the trial Judge, she then stated unequivocally that she could not individually return a verdict of death. Defense counsel then questioned Waller and asked Waller whether she could follow the law and set aside her personal feelings to impose the death penalty. She responded, "I would have to because I am under oath." The trial court then resumed questioning and received several unequivocal answers from Waller that she could not individually stand and render a verdict of death.
As for prospective juror Harris, defendant argues that Harris indicated only that he did not want to serve in general, rather than that he felt his beliefs made him unable under any circumstances to return a verdict of death. The transcript shows that Harris' daughter worked for the defense attorneys and that this fact caused him to have reservations about his ability to serve as an impartial juror: "All I know is my daughter has worked for Marshall [Bickett, lead defense counsel] and the other [defense] lawyer [Bays Shoaf] for the last year and two or three months . . . . She is their secretary or paralegal, whatever it is for some time." More importantly, however, Harris also indicated to the prosecutor that his beliefs about the death penalty were such that he "probably couldn't" return a verdict of death even if the law required it. When the trial Judge questioned Harris, the following colloquy took place:
Is what you're saying is that there aren't any facts or any law that in any case would allow you to return a verdict of guilt or death?
MR. HARRIS: I don't think so. I don't --
Your opinion is that your view in this particular case would impair your ability to perform your duties as a juror?
MR. HARRIS: I would rather not be involved in this case.
The question is do you think it would impair your ability as a juror in this particular case?
MR. HARRIS: To a certain degree it may.
Question is -- will it or won't it?
MR. HARRIS: It probably would.
The trial court then granted the State's motion to excuse Harris for cause.
The standard for determining when a prospective juror may be excluded for cause on account of his or her views on capital punishment is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" State v. Conaway, 339 N.C. 487, 511, 453 S.E.2d 824, 839 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52 (1985)), cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). Whether to allow a challenge for cause in jury selection is a decision ordinarily left to the sound discretion of the trial court, and that decision will not usually be reversed on appeal except for abuse of discretion. Id.
In the instant case Ms. Waller's responses indicated that she could not return a verdict of death under any set of circumstances. Any equivocation she may have exhibited reflected not an actual ability to sentence defendant to death if the law required it, but only her desire to abide by her oath and follow the law. See State v. Daughtry, 340 N.C. 488, 508-09, 459 S.E.2d 747, 757 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996); State v. Yelverton, 334 N.C. 532, 544, 434 S.E.2d 183, 190 (1993). Mr. Harris' responses likewise clearly indicated that his views on the death penalty would impair his ability to act as a juror in this case and that he could not return a verdict of death. Mr. Harris also had other additional impediments to his serving as an impartial juror. The trial court thus did not abuse its discretion in allowing the State's motion to excuse for cause either of these prospective jurors.
Defendant also argues that the trial court abused its discretion in not allowing the defense an opportunity to rehabilitate prospective jurors Waller and Harris. In Ms. Waller's case, the transcript reveals that the defense did attempt to rehabilitate the witness, albeit unsuccessfully. In Mr. Harris' case, the defense did not request to rehabilitate the witness. Where defendant fails to make any request to rehabilitate a prospective juror, he has failed to preserve for appellate review his contention that the trial court erred in failing to allow rehabilitation. Conaway, 339 N.C. at 512, 453 S.E.2d at 840. This assignment of error is overruled.
Defendant next contends that the trial court committed prejudicial error in admitting testimony from witnesses Gwendolyn Fisher, Nicole Pittman, and Barbara Jennifer Gray that the victim had told them that she was afraid of defendant, that she was afraid he might kill her, and that the bruises and knots on her head during the summer and autumn of 1995 were caused by physical abuse from defendant.
Defendant first argues that the victim's statements that she was afraid of defendant and that she was afraid that he might kill her were hearsay statements and that they were not admissible under the state of mind exception to the hearsay rule, N.C.G.S. § 8C-1, Rule 803(3) (1992). At trial Gwendolyn Fisher testified as follows on direct examination:
Q. Okay, over the period of time from when you first saw the bruises that you have described, up until the time -- up until November 2nd, did you see bruises on her at other times?
Q. How often did you see bruises on her?
A. It was getting to be almost a weekly thing I have seen them [sic.]
Q. Did she ever say to you whether or not she was afraid of the defendant in this case?
Q. What did she say to you?
A. She said that things were getting worse and that she was getting -- she was afraid of him, that something was missing in him. He didn't know how to love, things to that effect.
Q. Did she say what she was afraid what might happen to her?
A. She was afraid she was going to get killed.
Nicole Pittman testified as follows:
Q. Did Sheila [sic] Wall ever say anything to you about being afraid of [defendant]?
Q. What did she tell you?
A. Well, when I asked her, you know, how she got [the lumps and bruises on her scalp] --
[DEFENSE COUNSEL]: Objection.
[PROSECUTOR]: I don't want you to say what she said about ...